1. On November 9, 1994, the Ecumenical Commission of Human Rights
(CEDHU) filed a petition against the Republic of Ecuador (hereinafter "the
State" or "Ecuador") for violation of the American Convention on Human
Rights (hereinafter "the American Convention") to the detriment of Mr. Víctor
Rosario Congo.

2. The Commission opened case 11.427 on February 13, 1995. In its 95th
session the Commission found that it was competent to hear the case and declared it
admissible in Report 12/971. The parties were notified of
the approval of this Report on March 18, 1997.

II. PROCESSING BEFORE THE COMMISSION

3. In the operative part of Report 12/97 the Commission placed
itself at the disposal of the parties with a view to reaching a friendly settlement of the
case, and to advise it of their positions within 30 days.

4. In a note dated April 2, 1997, the petitioner expressed willingness
to initiate a process of friendly settlement. The Commission forwarded this information to
the Ecuadorian State. On July 29 the State presented arguments on the admissibility and
merits of the case without making any reference to the possibility of a friendly
settlement. The petitioner sent his observations on the arguments presented by the State
in a note dated November 3, 1997.

5. On November 14, 1997, the State finally replied to the
Commissions offer of friendly settlement. It stated it was prepared to enter into a
friendly settlement in light of the provisions of the Statute of the Administrative Legal
Regime of the Executive Branch of Ecuador, whose articles 130 and 134 establish a
procedure for determining the States material and subsidiary responsibility. The
Commission forwarded this reply to the petitioner, who in a note of January 21, 1998,
stated for the record that the proposal was not satisfactory. In his opinion, the State
had only agreed to attempt a friendly settlement of the case in ambiguous terms and based
on the idea that there are legal remedies for settlement of damages. He was therefore
convinced that a procedure for friendly settlement should be discarded, and requested the
Commission to issue a decision on the merits and send the case to the Court.

III. FACTS

6. Víctor Rosario Congo, an Ecuadorian aged 48, was charged by the
Second Criminal Judge of El Oro Province with robbery and assault in cases 202/90 and
205/90. On July 25, 1990, when those cases were under investigation, Mr. Congo was placed
in a detention center, the Social Rehabilitation Center in Machala.

7. Though they have not been conclusively corroborated, there are
indications that when he was incarcerated Mr. Congo behaved in a way that suggested mental
disorder. On or about September 12, 1990, he was placed in an isolation cell.

8. According to the information supplied by the petitioner and
corroborated or amplified by the State, on September 14, 1990, Víctor Rosario Congo was
attacked by Mr. Walter Osorio, a guard at the Rehabilitation Center.

9. As reported by the then Director of the Rehabilitation Center in his
log of September 29, 1990, " guard Walter Osorio took advantage of the
depressed mental state of inmate Víctor Amable Rosario Congo. Mr. Osorio, being on duty,
began to harass inmate Víctor A. Rosario Congo, I mean, he shouted questions over and
over at him, which clearly made him more demented , and even though it was he who had
driven inmate Víctor Rosario Congo to a high degree of insanity, guard Osorio himself
beat him with a club on the scalp, inflicting a wound that is still visible."

10. Despite the apparent severity of the wound and his emotional state,
there is no record of Mr. Congos having received any medical treatment. He was
returned to the isolation cell, where he apparently remained naked and virtually incommunicado.
In the aforementioned log the Centers Director admits that Mr. Congo " is
being held alone in the isolation cell because of his demented state, for he has been
urinating, defecating and speaking to himself for some time."

11. On September 20, 1990, Dr. Martha Sánchez de Rodríguez, Executive
Secretary of the Diocesan Commission on Human Rights, asked the judge trying the case to
order a psychiatric evaluation of the accused. In her opinion, Víctor Rosario Congo
should be pronounced unindictable and transferred to a psychiatric facility.

12. On that same date Dr. Wilmer Riofrío, a physician at the
Rehabilitation Center, sent the Director a note suggesting that, in view of his state of
health, Víctor Rosario Congo undergo psychiatric evaluation and treatment in a
specialized care facility. This request was also submitted to the prosecuting judge.

13. On September 25, 1990, in view of the judges failure to act,
Dr. Sánchez asked the government prosecutor to intervene to speed up the proceeding. In
her note she also requested an investigation be made to establish responsibility for the
assault on the victim.

14. The government prosecutor commissioned Dr. María Teresa Bernal de
Arévalo, the second rank detective on duty, to investigate the attack on the victim. To
this end, on October 2, 1990, medical experts Rubén Santacruz Barahona, specialist in
forensic medicine of the National Attorney Generals Office, and Wilmer Riofrío,
physician at the Rehabilitation Center, performed a forensic medical examination.

15. These medical experts report states in its conclusions that
the physical wound found on Mr. Congos head was the result of " a trauma
produced by a hard blunt object, which has made him ill and physically incapable of work
for seven days after its infliction, barring complications." Regarding his mental
state, they concluded that "judging from the signs observed in the patient during the
medical examination, his entire attitude conforms to the psychiatric symptoms of psychosis
(insanity), whose etiology may be rooted in the experience he is now going through and
could be classed as an incarceration psychosis, or Gansers syndrome, which usually
is improved greatly by a change in environment; we accordingly suggest that he be
transferred to a psychiatric facility."

16. On October 8, 1990, the then Director of the Machala Social
Rehabilitation Center asked the National Director of Social Rehabilitation in Quito for
authorization to transfer Víctor Rosario Congo to the Mens Social Rehabilitation
Center in Guayaquil for medical attention.

17. Finally, on October 23, 1990, the Second Judge of the Criminal
Court sent the Director of the Rehabilitation Center a letter authorizing transfer of the
alleged victim to the Lorenzo Ponce Psychiatric Hospital in the city of Guayaquil. The
documentation presented by the parties shows that the transfer was carried out the
following day; however, that hospital refused to admit him. From there he was taken to the
Luis Vernaza Hospital, where he was also turned away. Finally, on October 25, 1990, he was
taken to the Mens Social Rehabilitation Center in Guayaquil.

18. When Víctor Rosario Congo was admitted to the Mens Social
Rehabilitation Center in Guayaquil he was " in a critical state of
health " The National Directorate for Social Rehabilitation issued a medical
order stating that " the said inmate must leave urgently and under the maximum
applicable security and the responsibility of the guard or guards who move
him ". He was transferred due to third-degree dehydration, and it was ordered
that he be taken to the emergency ward of the Luis Vernaza Hospital.

19. Víctor Rosario Congo was taken to the Vernaza Hospital at 12
oclock on October 25, 1990. According to Hospital records files, the patient arrived
in a critically dehydrated state, and died a few hours after being admitted.

20. The report on the autopsy performed on October 27, 1990, concludes
that Víctor Rosario Congo died of malnutrition, hydroelectrolitic imbalance, and heart
and lung failure.

21. Guard Walter Osorio resigned shortly after the incident, and the
Second Judge of the Criminal Court of El Oro closed the cases for which Víctor Rosario
Congo had been placed under preventive detention.

IV. POSITIONS OF THE PARTIES

1. Allegations by the petitioner

22. The petitioner argues that the State is responsible for the wounds
inflicted on Víctor Rosario Congo, the failure to give him medical attention, his
isolation, and the negligence that ultimately caused his death.

23. The petitioner maintains that the State is responsible for the
wounds inflicted on the alleged victim by personnel of the Detention Center. He argues
that it has been proven that guard Walter Osorio struck Víctor Rosario Congo on the head,
inflicting a bleeding wound.

24. He also asserts that the State did not discharge its obligation to
provide medical care to the wounded person in its custody and, on the contrary, placed him
in a cell where he was left in solitary confinement despite his wounds and mental state.

25 In the petitioners view, the demise of the alleged victim
cannot be described as "natural death," but was the outcome of lack of due
diligence on the part of the State. The petitioner maintains that there is a causal
connection between the assault on the victim, the isolation in which he was placed, and
his death. It is reasonable to conclude, he argues, that the refusal to feed was a
consequence of that isolation and of the lack of medical care to which the victim was
subjected after he was injured on the head. In addition, Mr. Congo was suffering from a
mental disorder. He concludes that the State must accept its responsibility for what was a
"death while in custody."

26. The petitioner has also argued that the State failed to comply with
its obligation to carry out a judicial investigation to establish the responsibility of
those attacking inmate Congo and in his subsequent deterioration. He argues that the State
failed to conduct a judicial investigation into facts of such a nature as to constitute a
prosecutable offense, and asserts that this burden cannot be shifted to the petitioners.

27. The petitioner has also criticized certain aspects of the forensic
procedures, which he has described as "negligent."

2. The States defense

28. The State has presented documentary evidence confirming the
identity of the victims aggressor as Walter Osorio, a guard at the Machala Social
Rehabilitation Center. It has also presented information that confirms the physical and
psychological damage caused by the aggression. However, it has not presented any defense
in justification of the guards actions.

29. The State has described as "perverse" the
petitioners assertion that there is a causal link between the assault on the victim
on September 14, 1990, and his death on October 25 of the same year. It alleges that,
according to the autopsy, Víctor Rosario Congo died of dehydration and not of his wounds.

30. As for its obligation to act with due diligence in relation to
persons in its custodyparticularly persons in Mr. Congos state of
healththe State has only referred to the socioeconomic situation, which, it alleges,
prevents it from having psychiatric prisons and enough trained guards.

31. In regard to its duty to investigate violations of fundamental
rights, the State alleges that the petitioner filed no appeal with the Court of
Constitutional Guarantees to protect the victims rights. It maintains that the
complaint was presented only to the government prosecutor, who is not a member of the
judiciary, which cannot, therefore, be charged with delaying justice.

32. Lastly, and in reply to the petitioners criticisms, it
defends the validity of the autopsy performed and alleges that the experts are not
authorized to omit forensic procedures or falsify reports, for which they would incur
severe penal sanctions.

V. ANALYSIS

A. Issues of fact

33. The facts of the case as presented by the petitioner have not been
contested by the State, which has cooperated by presenting official documents that have
been instrumental in establishing a number of relevant facts.

34. Thus, the petitioner and the State agree that on September 14,
1990, guard Walter Osorio assaulted inmate Víctor Rosario Congo in the Machala
Rehabilitation Center, inflicting a wound on his head. They also agree that the alleged
victim remained alone in a cell at that Rehabilitation Center from September 14 until his
transfer to the Luis Vernaza Hospital, on October 25, where he died. Also undisputed is
the fact that the supposed victim died of advanced dehydration, as emerges from the
autopsy performed on him, although the petitioner, in his statement of June 6, 1996,
criticized certain formal aspects of the forensic acts as performed.

35. In addition to the above considerations, the Commission considers
it important to determine the state of mental health of Víctor Rosario Congo before and
during the events referred in the complaint. As explained below, such determination will
have an impact on the standards considered in the present case.

36. The mental state of the victim was not evaluated until after the
incident on September 14, 1990. Dr. Wilmer Riofrío established that Mr. Congo was
suffering from a mental disorder on September 20, 1990, and finally the Medical Legal
Report of October 2, 1990, established convincingly that he suffered from incarceration
psychosis, or Gansers syndrome.2

37. However, National Police report presented by the State indicated
that Víctor Rosario Congo "already suffered from a mental disorder, known as
Gansers syndrome " even before the incident on September 14, 1990. The
National Police came to that conclusion after analyzing the statements of Dr. Wilmer
Riofrío, inmate Trotsky Rosario Torres, and Mr. Francisco Soreano, as well as the letter
of September 20, 1990, signed by Dr. Riofrío.

38. That report also suggests that Víctor Rosario Congo reportedly
suffered from a mental disorder before being confined in the Machala Social Rehabilitation
Center, for when he was previously in another Social Rehabilitation Center he appears to
have been given valium intravenously to enable him to sleep.

39. Despite these signs, it does not emerge conclusively from the
information in the file of the case that Víctor Rosario Congo was suffering from any
mental disability before he was placed in preventive detention. Ecuadorian law makes
provision for cases in which a mentally ill person is detained on criminal charges. In
such cases the Ecuadorian Criminal Code requires the magistrate to investigate the
personal background of the accused and his behavior prior to commission of the offense.
When it is found that the offense was committed by a person suffering from mental illness,
the competent judge must order his confinement in a psychiatric hospital.3

40. The petitioners have not raised the question of whether Mr. Congo
should have been confined in a psychiatric hospital instead of being placed in preventive
detention in a rehabilitation center for common prisoners. Nor have they presented
supporting evidence. Therefore, the Commission will abstain from referring to this issue.

41. In any case, it is discarded that the victim acquired the mental
disorder found on October 20, 1990, as a result of the assault on him on September 14,
1990, and his subsequent solitary confinement. However such acts could have constituted
the factor that fatally aggravated the inmates physical and mental agony.

42. The United Nations has defined a person with mental disability as
one who in the course of his/her disability is unable to care for his/her own person or
affairs, and requires care, treatment or control for his/her own protection or that of
others or of the community.4 It has been established that Víctor Rosario
Congo fitted into this category. The Commission concludes that, for the purposes of the
present case, Víctor Rosario Congo must be regarded as mentally disabled.

B. Issues of law

43. This case has been presented by the petitioner without expressly
alleging the violation of specific provisions of the Convention. Nor have the observations
made by the State been based on interpretation of the applicable provisions of the
Convention.

44. Therefore the Commission, based on the principle of jura novit
curia, shall determine the provisions of the American Convention that may have been
violated in light of the facts, undisputed in this case, and of the allegations of the
parties.

45. In the present case the Commission deems it pertinent to assess
whether the State has complied with its obligations under the Convention to respect and
protect the rights to humane treatment, life, and judicial protection.

46. Before proceeding to an analysis of the substantive issues, it must
be considered whether the acts and omissions committed in the present case, and which are
alleged to have resulted in the violation of the fundamental rights established in the
Convention, are attributable to the State on the basis that they were committed against a
person in its custody.

47. Article 1(1) of the Convention establishes that the States Parties
must ensure the free and full exercise of the rights protected to " all persons
subject to their jurisdiction " The persons held in a penitentiary institution,
such as the Machala Rehabilitation Center, are under the direct control of the State,
which has the responsibility to protect their mental and moral integrity.

48. In its Judgment on the case Neira Alegríaet al.,
the Inter-American Court established that, in the terms of Article 5(2) of the Convention,
every person deprived of her or his liberty has the right to live in detention conditions
compatible with her or his personal dignity, and the State must guarantee to that person
the right to life and to humane treatment. Consequently, since the State is the
institution responsible for detention establishments, it is the guarantor of these rights
of the prisoners.5

49. As for the international responsibility that the State could incur
through its agents, the Inter-American Court has held that any impairment of the those
rights which can be attributed under the rules of international law to the action or
omission of any public authority constitutes an act imputable to the State, which assumes
responsibility in the terms provided by the Convention.6

50. In the present case, the alleged victim was held in preventive
detention while his trial for robbery was being prepared. Hence the Commission notes that,
if violations of the fundamental rights of the inmate were committed, they would be
imputable to the State in its capacity as guarantor.

1. Right to humane treatment

51. It has been established that the alleged victim was subjected to a
physical assault that resulted in a bleeding wound in his head. It has not been
established that he was given the medical care needed to alleviate his physical wounds or
his mental state. It has been confirmed that he remained in isolation, and without the
assistance he needed in cleaning and feeding himself, given the proven poor state of his
health.

52. It is to be determined, then, whether those acts and omissions
constitute a violation of Article 5 of the American Convention, which provides that:

1. Every person has the right to
have his physical, mental, and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment. All persons deprived of their liberty shall be treated
with respect for the inherent dignity of the human person.

53. The Commission deems it pertinent to apply special standards to the
determination of whether the provisions of the Convention have been complied with in cases
involving persons suffering from mental illnesses. This has also been the practice of the
European Court of Human Rights.7

54. In this case the person whose physical, mental and moral integrity
was allegedly violated, suffered from a mental disability. Therefore, the Commission
considers that in the present case the guarantees established in article 5 of the American
Convention must be interpreted in light of the Principles for the Protection of Persons
with Mental Illness and for the Improvement of Mental Health Care.8
These principles were adopted by the United Nations General Assembly as a guide to
interpretation in matters of protection of the human rights of persons with mental
disabilities, which this body regards as a particularly vulnerable group.

a. Solitary confinement as cruel and inhuman
treatment

55. The Commission must consider first whether the isolation to which
Víctor Rosario Congo was subjected constitutes a violation of Article 5 of the American
Convention. According to the report of the Guayas Provincial Police Headquarters
(Communication Nº 6118), supplied by the State, Mr. Congo was moved to an isolation cell
on September 12, 1990, apparently owing to his mental state. This means that the victim
remained in virtual isolation for approximately 40 days until he died on October 25, 1990.

56. The Inter-American Court referred to the effects of solitary
confinement and the holding of prisoners incommunicado. It has established that
keeping a person in a small, isolated cell constitutes inhuman and degrading treatment,
which justifies provisional measures to preserve his integrity.9

57. In the case A. vs. United Kingdom,10 the
European Commission considered the case of a patient held in isolation in a psychiatric
hospital for five weeks without clothing, toilet facilities, furniture or ventilation, in
the light of the standards on humane treatment established in the European Convention on
Human Rights. The case was closed with a friendly settlement under which the United
Kingdom undertook to reform the law on mental health and to assure the provision of
clothing, mattresses, portable latrines and toilet paper to inmates.

58. The Commission is of the view that isolation can in itself
constitute inhumane treatment. Moreover, when the person kept in isolation in a
penitentiary institution has a mental disability, this could involve an even more serious
violation of the States obligation to protect the physical, mental and moral
integrity of persons held under its custody.

59. In this case, the Commission considers that the solitary
confinement to which Mr. Congo was subjected constitutes inhuman and degrading treatment
in the terms of Article 5(2) of the American Convention. This violation is aggravated by
the fact that he was left in isolation unable to satisfy his basic needs. Consequently,
the Ecuadorian State violated the right of Víctor Rosario Congo to "be treated with
respect for the inherent dignity of the human person."

b. The events of September 14, 1990

60. As has already been established, on September 14, 1990, a guard in
the Rehabilitation Center assaulted inmate Víctor Rosario Congo for no apparent reason.
The guard, identified as Walter Osorio, was acting as a public authority in the detention
center, and hence his actions are imputable to the State.

61. The Commission has established that the agents of the State charged
with maintenance of order in jails have the duty to treat humanely the prisoners in their
custody.11

62. The Commission considers that the State is responsible for the
physical assault committed by one of its agentsguard Osorioon Mr. Congo. The
events of September 14, 1990, constitute cruel, inhuman and degrading treatment, and a
grave violation of the victims right to respect for his physical, mental, and moral
integrity.

c. The duty to ensure the physical, mental, and
moral integrity of persons suffering from
mental illness

63. On September 20, 1990, after the injury had been inflicted, Dr.
Wilmer Riofrío--a physician at the Rehabilitation Center--determined that the
inmates mental state required specialized medical care.12

64. However, detection of Mr. Congos mental suffering did not
result in his immediate removal to a health care facility not even the conditions of his
detention were improved. The "Report to the Chief of the Guayas Provincial Judicial
Police," submitted by the State, states that "though Víctor Rosario Congo
was injured and suffering from temporal and spatial disorientation, those in charge of him
continued to keep him in an isolation cell without the treatment required in these cases,
which constitutes negligence."

65. In its Report No. 28/9613 the Commission
found that retaining in custody, and without medical treatment, a person who was suffering
from cerebral edema and cholera constituted a violation of physical, mental and moral
integrity and of the prohibition on the infliction of inhuman, cruel or degrading
treatment, established in Article 5 of the American Convention.

66. The European Commission has established that the incarceration of a
mentally disabled person under deplorable conditions and without medical treatment may be
considered as inhuman or degrading treatment.14 In the case Herczegfalvy
vs. Austria it reiterated that failure to provide medical treatment to prisoners or
mental patients can constitute a violation of the provisions of the European Convention on
Human Rights, regarding the infliction of inhuman or degrading treatment or punishment.15

67. The Commission considers that a violation of the right to physical
integrity is even more serious in the case of a person held in preventive detention,
suffering a mental disease, and therefore in the custody of the State in a particularly
vulnerable position.

68. The Commission concludes from the foregoing that the State is
responsible for not taking the necessary measures to protect the physical, mental and
moral integrity of the victim. It is not clear from the positions of the parties whether
his condition was investigated promptly or belatedly by the authorities; in any case, once
that condition was established, the State failed to provide the medical treatment needed
to ensure his physical integrity.

2. The right to life

69. Article 4(1) of the American Convention establishes that:

Every person has the right to have
his life respected. This right shall be protected by law and, in general, from the moment
of conception. No one shall be arbitrarily deprived of his life.

70. On September 20, 1990, the Director of the Machala Social
Rehabilitation Center, Alberto Soreano, asked the Second Judge of the Criminal Court of El
Oro for the victim to be moved to a psychiatric care facility. However, an attempt to move
him was only made on October 24 and it was unsuccessful. The move was carried out the next
day, a few hours before Mr. Congo died.

71. The State has alleged that it is not responsible for the death of
Víctor Rosario Congo, and has described as "perverse" the alleged connection
between the events on September 14, 1990, and the inmates death.

72. The Commission must make clear that, the assertions of the State
notwithstanding, a connection between the violation of the victims physical
integrity on September 14, 1990, the worsening of his mental condition and his death
appears from the evidence provided by Ecuador itself. The National Police report of May 1,
1995, cites the statements of the former Director of the Machala Social Rehabilitation
Center to the effect that " the blow dealt with his club by guard Osorio to the
aforementioned inmate could have impaired his mental state, aggravated his illness a
little more, and ultimately caused his death "

73. The States observations affirm, and the autopsy confirms,
that the victim did not die of his injury but of the dehydration he suffered during the
approximately forty days he remained in isolation without food or water. It has not been
shown, however, that the necessary measures were taken to protect the personal integrity
of an inmate who exhibited physical wounds which, though not grave, required attention,
and who, owing to his mental state, was in no position to look after himself.

74. The measures needed for his survival consisted in medical care to
heal his physical injuries, and such vital ministrations as cleansing, food, and
psychological attention to treat his depression and the psychosis characteristic of
Gansers syndrome.

75. As revealed by the information supplied by the State, the victim
was held in isolation for more than forty days practically up to the day of his death;
that after being subjected to physical and moral assault by staff of the Rehabilitation
Center, no medical care was given to his wounds, as emerges from the examination performed
on him on October 2, 1990; and that, though he was diagnosed as mentally ill, he was kept
in isolation and his basic physical needs were disregarded in the knowledge that he was in
no condition to care for himself.

76. The State has alleged that structural obstacles prevent it at
present from providing medical and psychiatric treatment to persons in its custody. It
requests that this structural situation be taken into account in arriving at a decision in
this case.

77. The Ecuadorian penitentiary system is presumably not up to the
international standards of medical and psychiatric care. Mental Health Principle 20.1
and 20.2 state that "persons serving prison sentences for criminal offenses or
arrested in the course of criminal proceedings brought against them, and who are found to
be or suspected of suffering from mental illness must receive the best available
mental health care " The Minimum Standards for the Treatment of Prisoners16 prescribes that mentally disabled persons shall not be placed in
prisons. Arrangements are to be made to move them as quickly as possible to facilities for
the mentally ill, and in the event that they must remain in prison, they shall remain
under the special oversight of a physician.17

78. In its Report on the Human Rights Situation in Ecuador the
Commission noted that the States psychiatric hospitals do not admit inmates,
apparently because of the tension and fear they may engender in other patients.18 This situation poses a serious threat to the physical and mental
integrity and the lives of the persons with mental disabilities in that situation. In this
particular case, the threat materialized and led to the death of a person being held under
preventive detention.

79. However, apart from the need for the State to correct this
deficiency, the Commission found on its on-site visit to Ecuador that the country does
have hospitals that can give out-patient care to inmates with health problems.19

80. In any case, the international standards applicable establish that
every detention center shall possess the services of at least one qualified physician, who
must possess some psychiatric knowledge. This physician must be responsible for the
physical and mental health of the inmates and must see those with health problems every
day as well as those drawn to his attention.20

81 In brief, the fact that the State has no special facilities for the
admission of prisoners with mental illness does not exempt it from the obligation to
provide medical care to the persons in its custody.

82. The European Court of Human Rights has established that the state
of health of a victim is an important factor in determining whether they have been
subjected to inhumane or degrading punishment or treatment.21 The
Commission must take into consideration that the death of the victim occurred as a
consequence of dehydration and malnutrition. Persons with mental disability are not able
to look after themselves and require care, treatment and supervision for their own
protection. In this case, therefore, the agents of the State charged with the personal
safety of Mr. Congo were not in a position to assume that the inmate was capable of
feeding and caring for himself. The fact that the supposed victim died as a result of his
dehydration and malnutrition reveals that the State failed in its duty to do what was in
its power to keep him alive, given his mental and physical disorders. The petitioners have
not argued that Mr. Congo was deliberately deprived of water and food, but the State has
not shown that it took the measures incumbent on it to ensure that the alleged victim
would be properly fed during the time of his isolation. Nor does the fact that the inmate
may have displayed antisocial behaviora symptom of his disorder in any
caseexempt the State from taking such measures as are in its power to keep him
alive. As held by the European Commission in the case of Dhoest vs. Belgium,22the obligation of authorities to watch continually over the
health and welfare of persons with mental disabilities extends to the cases of prisoners
who are uncooperative. Therefore, given the causes of his death, and apart from having
omitted to provide him with medical and psychiatric care, the State neglected its
obligation to protect the life of inmate Víctor Rosario Congo.

83. In its Report Nº 28/96,23 the Commission
established that whenever a person is detained and unable to contact his next of kin, a
lawyer or personal physician, the State must be considered to be in complete control of
his life and physical integrity. In such circumstances, any omission by the State violate
its obligation to ensure the right to life and physical integrity of the inmate.

84. On the basis of the foregoing, the Commission concludes that in the
present case the State failed to take the measures in its power to ensure the right to
life of a person who, partly because of his state of health and in part owing to injuries
inflicted on him by a State agent, was defenseless, isolated and under its control.
Therefore, Ecuador has violated the right to life of Mr. Congo, as enshrined in Article 4
of the American Convention, and omitted to discharge its obligations under Article 1(1)
thereof.

3. Right to judicial protection

85. The Commission will now examine whether the obligation to provide
judicial protection was complied with in the present case. This issue was raised in the
admissibility stage and reserved for consideration with the merits of the case.24

86. Article 25(1) of the American Convention establishes that:

Everyone has the right to
effective recourse to a competent court or tribunal for protection against acts that
violate his fundamental rights recognized in the constitution or laws of the state
concerned or by this Convention, even though such violation may have been committed by
persons acting in the course of their official duties.

87. As has already mentioned, on September 20, 1990, a psychiatric
evaluation of Mr. Congo and his removal to a care facility was requested to the judge of
the case, the Second Judge of the Criminal Court of El Oro. On September 28, 1990, in view
of that magistrates inaction, the government prosecutor of that jurisdiction was
asked to open an investigation into the responsibility for the assault on the prisoner.

88. At the time of writing the Commission has neither been informed nor
knows from any other source that the requested actions were taken. According to the
information supplied by the parties, guard Walter Osoriowho allegedly inflicted the
woundsresigned from his post shortly after the incident.

89. The State alleges in its own defense that the complaint had been
presented to the government prosecutor of El Oro, who does not represent the judicial
branch, which is the body presumably responsible for the unwarranted delay in opening the
investigation. In reply, the petitioner has maintained that requested judicial inquiries
must be pursued automatically once the judicial authority is in receipt of the appropriate
advice.

90. The Commission notes that the Code of Criminal Procedure of Ecuador
establishes that the offense of bodily injury is prosecutable ex officio. Article
21 of that Code provides that "on the basis of received information, the Office of
the Attorney General (Ministerio Público) shall advise the competent judges to
open criminal proceedings."

91. The Commission considers, therefore, that Víctor Rosario Congo has
been the victim of an offense that is subject to investigation ex officio, and that
the office of the attorney general, embodied in the person of the El Oro prosecutor, was
duly apprised of the events of September 14, 1990, and of the state of Mr. Congos
health.

92. The State argues that the failure to provide judicial protection in
the instant case is the petitioners responsibility, who did not apply to the
Constitutional Tribunal for protection of the fundamental rights of Víctor Rosario Congo.

93. The Commission, as established in its case-law,25
considers that when an offense prosecutable ex officio is committed, the State has
the obligation to institute a process and prosecute the responsible through to its
ultimate conclusion. In these cases neither the victim nor his/her relatives can be
required to undertake the task of exhausting domestic remedies. It is up to the State to
investigate the facts and punish those responsible as part of its obligation to preserve
public order.

94. In the words of the Inter-American Court, the obligation to
investigate " must have an objective and be assumed by the State as its own
legal duty, not as a step taken by private interests that depends upon the initiative of
the victim or his family without an effective search for the truth by the
government."26

95. The investigation, trial and punishment of human rights
perpetrators is an obligation that the State is in no position to delegate. Unlike private
persons, public officials are legally bound to prosecute ex officio all indictable
offenses that come to their knowledge. This is precisely why in most systems the State has
a monopoly on criminal proceedings, and in judicial systems that give legal standing to
the victim or his family, it is not obligatory that the actions contemplated be taken, and
they do not supplant action by the State.27

96. In the instant case, the State authorities were neglectful in their
obligation to investigate the events of September 14, 1990, and those that followed,
culminating in the death of Víctor Rosario Congo, in order to establish the
responsibility of the parties involved and take appropriate action.

97. The Commission concludes that the State has violated the right to
judicial protection enshrined in Article 25(1) in conjunction with Article 1 of the
Convention, as no judicial proceedings have been opened to investigate and establish the
responsibilities for the injuries to and death of Víctor Rosario Congo.

VI. ARTICLE 50 REPORT AND CONSIDERATIONS ON
COMPIANCE WITH THE
RECOMMENDATIONS SET FORTH THEREIN

98. On September 29, 1998, during its 100° Regular Session, the
Commission approved Report 51/98 according to Article 50 of the American
Convention. The Report concluded that the State was responsible for the violation of the
rights to life (Article 4), to humane treatment (Article 5(1) (2)), and to judicial
protection (Article 25), set forth in the American Convention, in conjunction with the
obligation established in Article 1(1) thereof. The Commission recommended the State to:
1) Conduct a serious, impartial and prompt investigation to identify, try and punish the
persons responsible for the violations specified in the conclusions of this report. 2)
Take appropriate measures to compensate the family members of Víctor Rosario Congo. 3)
Provide medical and psychiatric care for persons suffering from mental illness and
confined in penitentiary facilities. 4) Assign to the health services of the penitentiary
system specialists able to identify psychiatric disorders that can affect the lives and
the physical, mental and moral integrity of those confined in it. Report 51/98
was notified to the State on October 20 1998 with a three-month period to present
information regarding compliance with the above recommendations.

99. On February 24, 1999, the State, extemporaneously, informed the
Commission that:

The Ecuadorian State, through the
General Attorney, has initiated direct conversations with the petitioner, the Comisión
Ecuménica de Derechos Humanos, with the purpose of concluding an agreement on
compliance with Report 51/98, issued by the Inter-American Commission on Human
Rights.

The petitioner has expressed that they have failed to locate the
victims family. Therefore, the Ecuadorian State is still waiting for them to contact
family members in order to finalize the negotiations.

It must be noted that the General Attorneys Office and the petitioner,
the Comisión Ecuménica de Derechos Humanos, have agreed the possible terms of
compliance with the Report.28

The State requested the Commission to suspend the processing of the
case until the petitioner could contact the victims family members in order to sign
the agreement.

100. The Commission takes note of the encouraging measures taken by the
Ecuadorian State to comply with the Commissions recommendations. However, the terms
of the future agreement have not been communicated to the Commission and, as it appears
from the communication presented by the State, the said agreement has not been effectively
concluded. Therefore, the Commission must adopt the decision that will contribute to
protect human rights in the most effective manner which, in this case, is that of
continuing with the proceeding provided for in Article 51 of the American Convention.

VII. CONCLUSIONS

101. Based on the above considerations of fact and law, the Commission
finds that the recommendations issued in Report 51/98 have yet to be complied with,
and therefore ratifies its conclusion that the Ecuadorian State is responsible for the
violation of the rights to life (Article 4), to humane treatment (Article 5(1) (2)), and
to judicial protection (Article 25), set forth in the American Convention, in conjunction
with the obligation established in Article 1(1) thereof.

VIII. RECOMMENDATIONS

102. On the basis of the foregoing conclusions,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

DECIDES:

103. To reiterate its recommendations to the State of Ecuador that it:

1. Conduct a serious, impartial and prompt investigation to identify,
try and punish the persons responsible for the violations specified in the conclusions of
this report.

2. Take appropriate measures to compensate the family members of
Víctor Rosario Congo.

4. Assign to the health services of the penitentiary system specialists
able to identify psychiatric disorders that can affect the lives and the physical, mental
and moral integrity of those confined in it.

IX. PUBLICATION

104. On March 10, 1999, the Commission transmitted Report 29/99
adopted in the present case (see chapters I to VII supra) to the State pursuant to
Article 51(1) and (2) of the American Convention, and fixed a period of twenty days to
adopt all necessary measures to comply with the recommendations at issue.

105. On April 8, 1999, the Commission was informed that the State and
sister Elsie Monge, Executive Director of CEDHU and representative of the victim, had
reached an agreement on compliance with Report 29/99. It must be noted that at the
date of conclusion of the agreement, all efforts to locate the victims family
members were still fruitless. Pursuant to this agreement, the State acknowledges its
international responsibility for the violations of Articles 4, 5(1), 5(2), 25 and 1(1) of
the American Convention and agrees to "repair the damage caused to the victim".

106. The State undertook to pay compensation in the amount of US$30,000
(thirty thousand US dollars), tax fee, with the exception of the duties imposed on capital
circulation, for the moral and material damages suffered by the victim. The State formally
undertook to take all necessary steps to make effective payment within 90 days from the
date of signature of the agreement. The State also acceded to add to the amount of any
arrears the corresponding interest calculated according to the rate employed by the three
leading banking institutions in Ecuador.

107. The parties agreed to establish a trust fund for the benefit of
Víctor Rosario Congos family and to that effect they shall deposit the amount
agreed upon in a financial institution. Should the parties fail to locate the
victims heirs within six months, the compensation will be given to an institution,
to be designated by CEDHU, dedicated to the mentally ill at Quito prisons.

108. Regarding the prosecution of the State agents responsible for the
violations found, the General Attorney formally undertook to "urge the competent
public or private organs to produce information leading to the prosecution of such
persons."

109. The State has notified the conclusion and the terms of this
agreement to the Commission for its "entire approval and ratification." It has
also requested that the Commission supervise compliance with its terms and, to that
effect, has undertaken to report every three months.

110. The Commission considers that the agreement above described
constitutes a formal undertaking to comply with the recommendations made in Report
29/99 and that its terms are compatible with such Report and with the object and
purpose of the American Convention. The Commission sincerely welcomes the Republic of
Ecuadors commitment to comply with the recommendations issued.

111. Therefore, the Commission takes note of the agreement reached
between the Ecuadorian State and the representative of the victims interests, Sister
Elsie Monge from CEDHU, and approves its terms. In view of the foregoing considerations,
and in accordance with Article 51(3) of the American Convention and Article 48 of its
Regulations, the Commission decides to make the present Report public and include it in
its Annual Report to the General Assembly of the OAS. Pursuant to its mandate, the
Commission shall continue evaluating the measures adopted by the Ecuadorian State
regarding all the recommendations included in paragraph 102 until they have been fully
complied with.

Approved by the Inter-American Commission on Human Rights (IACHR), in the city of
Washington, D.C. on the 13th day of the month of April 1999. (Signed): Robert
K. Goldman, Chairman; Hélio Bicudo, First Vice Chairman; Claudio Grossman, Second Vice
Chairman; Commissioners Alvaro Tirado Mejía and Jean Joseph Exume.

"The Court considers
that the position of inferiority and powerlessness which is typical of patients confined
in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention
has been complied with " Euro Court HR Herczegfalvy v. Austria, September
24, 1994, para. 82.

The UN Principles for the
Protection of Persons with Mental Illness are regarded as the most complete standards for
protection of the rights of persons with mental disability at the international level.
These Principles serve as a guide to States in the design and/or reform of mental health
systems and are of utmost utility in evaluating the practices of existing systems. Mental
Health Principle 23 establishes that each State must adopt the legislative, judicial,
administrative, educational, and other measures that may be necessary to implement them. Principles
for Protection of Persons with Mental Illness and for the Improvement of Mental Health
Care.. G.A. Res 119, UN GAOR, Session 460, Supp. No. 49, Annex, UN doc. A/46/49
(1991), pp. 188-192. See Eric Rosenthal and Leonard S. Rubenstein, International Human
Rights Advocacy under the Principles for the Protection of Persons with Mental Illness.
Intl J.L. & Psychiatry 257, 273 (1993). See also Derechos Humanos y Salud
Mental en el Uruguay, Mental Disability Rights International, The American University,
Washington, D.C. (1995), p. 4.

I/A Court HR Resolution of
July 2, 1996. Provisional Measures requested by the Inter-American Commission on Human
Rights in respect of Peru, Case of Loayza Tamayo. In this Resolution the Court
decided that provisional measures were called for because the victim was "subjected
to isolation and deprived of sunlight, which facts in themselves constitute cruel and
inhuman forms of treatment."

Persons with
Gansers syndrome require, among other things, immediate hospitalization to alleviate
their anxiety and place them in an environment relatively free of pressures, in which
mental distress can be restored to balance or reduced to bearable levels and the symptoms
can improve. See Hampel, Berger and Muller, op. cit., p. 240.

Ashingdane vs. United
Kingdom. Application Nº 8225/78, Series A Nº 93,6 E.H.R.R. 50 (1984) " Other
provisions of the Convention, Art. 3 (the prohibition on torture, inhuman or degrading
treatment, or punishment) and Art. 18 (the prohibition on using permitted Convention
restrictions for ulterior purposes) might be in issue were a mental health patient to be
incarcerated in appalling conditions with no consideration being given to his
treatment "

Herczegfalvy vs.
Austria, par. 242 "The Commission has repeatedly considered the medical treatment of
prisoners or mental health patients under Article 3 of the Convention. Failure to provide
adequate medical treatment may be contrary to this provision "

Report Nº 52/97, Case
11218, Arges Sequeira Mangas, Annual Report of the IACHR 1997, paragraphs 96 and 97. The
Commission has also stated that "the State has an international obligation to
investigate, clarify and redress any violation of human rights which give rise to a
complaint and to punish those responsible, in accordance with Articles 1(1), 8 and 25 of
the American Convention. In this case, in particular, the State had the obligation to
identify those responsible for the violations of the right to personal integrity which
gave rise to the petitioners complaints " Report 55/97, par. 392.